Law professors are having their annual conference this week in San Diego, and two panels have focused exclusively on Prop 8, especially the post-election challenge (which I've discussed here).
The panel this morning was terrific, especially interesting because each panelist presented a distinctive point of view. (Kudos to Rachel Moran of Berkeley for selecting the speakers). The panel going on now is also excellent; it's more philosophically coherent: all supporters of lgbt rights and of the challenge to Prop 8.
Starting with the morning panel –
Bill Eskridge (Yale) argued that the Prop 8 campaign mobilized some of the very old anti-gay tropes, in a kinder, gentler version – for example, that it drew on the theme of a predatory gay focus on children in its arguments about how legalized same-sex marriage would lead to the "teaching" of homosexuality to schoolchildren.
Nancy Polikoff (AU) argued, as she does in her book, that the focus on same-sex marriage has narrowed the scope of a campaign against injustice in family law because it not only continues, but reinforces, the history of drawing a line based on marriage, rather than based on whether marriage serves the function of that particular law – e.g. whether benefits designed to compensate for loss of income should be based on marital status or on whether there was actually financial interdependency between the two people.
Bruce Cain (Poli Sci/Berkeley) expressed concern that the kind of majoritarian lock-out of minority rights represented by Prop 8 feeds a political tendency to allow only concepts of rights supported by a majority. He argued that there should be a distinction between popular adoption of constitutional changes that reform institutional aspects of government, which should be easier to allow popular opinion to bypass the legislature, and changes that redefine individual liberties, especially as to minorities, which should be required to go through a more cumbersome set of steps.
I'm going to exercise my editorial license to focus on those three speakers and the cross comments and questions they triggered. An audience member questioned whether Professor Cain's distinction between individuals and institutions wouldn't turn out to be a Maginot Line, simply creating possibilities, for example, for changing the law of institutions like the judiciary in ways that would have the purpose and effect of truncating individual rights. Another panelist, Steve Smith (San Diego) argued that the Prop 8 supporters' view that legalizing marriage would lead to legitimization of homosexuality in schools was not simply paranoid or a resurgence of old stereotypes, because in fact schools do, and are supposed to, transmit values. The fifth panelist, Gerald Rodriguez (Texas) predicted that there was virtually no chance that the California Supreme Court would invalidate Prop 8, prompting Eskridge to note that this court had a history of reversing the burden of political inertia on stigmatized groups.
There is also a panel discussion happening as I write. Katherine Darmer (Chapman) spoke movingly of her experiences opposing Prop 8 and organizing legal support for the challenge, as well as the psychological impact on her lgbt students of Prop 8's passage. Erwin Chemerinsky (dean of Cal-Irvine Law) described the amendments/revisions distinction and the arguments raised by AG Brown. He made clear his agreement with the arguments in the briefs filed by the Prop 8 challengers. Cliff Rosky (Utah) addressed the question of political powerlessness in the assessment of whether sexual orientation should be considered a suspect classification. He argued that if a classification is suspect because of its disconnect to legitimate criteria, then that characteristic should be suspect forever, regardless of where on the political power spectrum a group falls at a given moment.
Bill Eskridge, also a member of the second panel, focused on constitutional theory and how Prop 8 relates to different approaches to constitutional interpretation (textual, original meaning, and common law constitutionalism, ie developed by reasoning from precedent and analogy). He also analyzed the relationship to legal process theory, i.e. asking which institutions should perform which functions, or the Ely representation reinforcement analysis, or the critique that direct democracy lacks the benefits of deliberative process for important questions. He used the opportunity to criticize the Tushnet/Ackerman theory of popular constitutionalism. Wasn't Prop 8 an example of a popular constitutional moment? Eskridge criticized the channeling of constitutionalism through only one institutional structure, and endorsed a process for popular amendment like the one in Massachusetts, which requires two successive votes by the legislature to send an amendment to the voters, thus allowing multiple institutions to weigh in and providing for deliberation and feedback over the course of the process.
What's safe to conclude? No one has a clue what the CA Supreme Court is going to do with the Prop 8 challenge. That's not surprising, because there simply is no body of precedent that is directly on point and that clearly favors one side rather than the other, on the amendment/revision distinction. In my view, the Prop 8 challengers have the better structural and purposive analysis. But it's going to be razor thin … at best.